The appellant by filing the instant appeal has called in question the acquittal of respondents Nos.1 to 3, Asif Younas alias Chhotu, Dilshad Masih and Haroon alias Pappee, pronounced vide judgment dated 28.1.2008, by the learned Additional Sessions Judge, Lahore, on conclusion of their trial in case FIR No.206/2005, dated 30.3.2005, under sections 302/34, P.P.C., registered at Police Station South Cantt. Lahore.
2. Precisely, the prosecution story as narrated by Babar William- complainant/appellant (P.W.8) in FIR (Exh.P.W13/A) is that his brother Sajid William ran a billiard-shop at Sayan Chowk, Mariam Nishat Colony, Lahore; he and his brother Sajid William were present at the shop at 4.00 p.m. On 29.3.2005, when respondent-Chhotu came there and started playing the game; after about half an hour's play, when he intended to leave the shop, Sajid William asked him to pay the game-charges, which he flatly refused to defray and left the shop threateningly and abusively; he, his brother Sajid Walliam and his friends Maqsood Masih, Bashir Masih and Taj Masih were about to put up the shutters of the shop at about 11.00 p.m., the same day, when Chhotu (respondent No.1), Dilshad alias Gagga (respondent No.2) and an unknown person, all armed with pistols, reached there; immediately on their arrival, respondent Chhotu raised Lalkara to kill Sajid William as he had demanded game-charges from him and he at once fired straight into his abdomen; the fire shot of respondent Dilshad alias Gagga landed at left thigh of Sajid William and that of the unknown accused at his right calf, due to which he fell onto the ground; he raised alarm, which attracted many a persons to the spot; all the shooters made good their escape.
' The motive behind the occurrence was that the above said persons used to play the billiard- game, but not pay the cost thereof, which led to a petty quarrel between Sajid William and them in the earlier hours of the day; they bore grudge against Sajid William and fired to murder him; Sajid William was shifted to the Services Hospital Lahore for treatment, where he succumbed to the injuries, sustained. The occurrence was witnessed by Babar William-complainant, Maqsood Masih, Bashir Masih and Sartaj Masih. The complainant reported the incident to Rab Nawaz SI (P.W.11) at Services Hospital, Lahore, who reduced into writing complaint (Exh.PW8/A) at 6.35 a.m. On 30.3.2005 and dispatched it to the police station through Muhammad Akram 12872/C, on the basis of which formal FIR (Exh.PW13/A) was drawn up by Abdul Majeed SI (P.W.13), at 7.30 a.m., the same day.
3. After registration of the case, Muhammad Aslam SI (P.W.14) carried out the investigation of this case. He examined the dead body of Sajid William, prepared the injury statement (Exh.PW14/A), the inquest report (Exh.PW14/B), an application (Exh.PW14/C) for postmortem examination of the dead body and despatched it to the mortuary for autopsy under the escort of Muhammad Sarwar 11972/C (P.W.3) and Abdul Rashid/Rashid Ahmad 4561/C (P.W.4); he inspected the spot, during the course of which, he prepared visual site plan (Exh.PW14/D), collected blood stained earth vide seizure memo (Exh.PW9/A), secured three crime empties and a bullet-head vide recovery memo Exh.PW9/2; he got prepared the site plan-in-scale in duplicate (Exh.PA & Exh.PA/1) qua the place of occurrence by Syed Younas Bokhari, draftsman (P.W.2); he arrested Asif alias Chhotu and Dilshad (respondents Nos.1 and 2) on 29.4.2007; he recorded supplementary statement of the complainant on 3.5.2005, wherein he nominated Haroon alias Pappee (respondent No.3); he arrested the said respondent on 7.5.2005; he interrogated the respondents (Nos.1 to 3) and after extensive investigation, he reached the conclusion that actual culprits were Waqas Chaudhry, Adnan and Usman, not named in the FIR; the complainant, however, stuck to the allegation that crime had been committed by the respondents. On completion of investigation, challan was submitted before the learned trial court for trial of the respondents in accordance with the law.
4. To prove its case, the prosecution produced fifteen witnesses, namely, Muhammad Din 3525/HC (P.W.1), Syed Younas Bokhari, draftsma n (P.W.2) Muhammad Sarwar 11972/C (P.W.3), Rashid Ahmad 4561/C (P.W.4), Dr.Fakhar-uz-Zaman (P.W.5), Azeem Akhtar (P.W.6), Pervaiz Masih (P.W.7), Babar William (complainant/P.W.8), Bashir Masih (P.W.9), Dr.Muhammad Ashfaq (P.W.10), Rab Nawaz SI (P.W.11), Muhammad Javed 2109/C (P.W.12), Abdul Majeed SI (P.W.13), Muhammad Aslam SI (P.W.14) and Dr.Tahir Ayub (P.W.15). Thereafter, the respondents were examined under section 342 Cr.P.C., whereby they professed their innocence in the matter and denied all the allegations levelled against them. Their respective contentions, in reply to the question as to why this case against them and why the PWs had deposed against them, read as under:- ASIF YOUNAS ALIAS CHHOTU: "This case has been concocted against me because the complainant came under the impression that I sent these accused persons namely Waqas Chaudhry, Usman and Adnan for committing the murder of the deceased, whereas the fact of the matter is that I neither went to the Billiard shop of the deceased for playing game nor I extended threats to the deceased and similarly, on this suspicion that I disclosed the address of the Billiard shop of the deceased, I have been involved falsely in this murder case and no eye-witness of the locality has deposed against me and all the three eye-witnesses reside at a distance of 9 K.M. From the place of occurrence."
DILSHAD MASH! ALIAS GAGGA: "Due to suspicion. The PWs are closely related to the deceased and have deposed falsely."
HAROON ALIAS PAPPEE: "This case has been fabricated against me on the basis of suspicion and all the PWs have deposed against me due to relationship with the complainant party."
' None of them deposed under section 340(2), Cr.P.C. Nor did they adduce the defence evidence.
The learned trial judge on conclusion of their trial pronounced them acquitted of the charge.
5. Learned counsel for the appellant has submitted that the impugned judgment has been passed in utter disregard to the data available on the record and the law on the subject; the ocular account furnished by Babar William (complainant/P.W.8) and Bashir Masih (P.W.9) was duly supported by the medical evidence and the allied incriminatory material, but all had been grossly overlooked by the trial court while pronouncing acquittal of the respondents; the observations, as contained in the impugned judgment have no nexus with the evidence produced by the prosecution, which would easily render the impugned judgment a nullity in the eye of law; the eye- witnesses categorically deposed about the individual fatal roles of the respondents (Nos.1 to 3) in their testimonies, which were further strengthened by the statements of three medical officers, Dr.Fakhar-uzZaman (P.W.5), Dr. Muhammad Ashfaq (P.W.101 and Dr.Tahir Ayub (P.W.15), but nothing could impress the trial court and it pre-supposedly held them innocent in a causal way; the opinion of the investigating officer as to innocence of the respondents has been given undue weightage by completely overlooking the settled principle of law that it was both irrelevant and inadmissible in evidence. Learned counsel has lastly contended that the impugned judgment is a product of whimsical and conjectural thoughts of the learned trial court, which may be set aside and respondents may be convicted/sentenced accordingly.
6. We have heard the learned counsel for the appellant and gone through the available record minutely.The prosecution case mainly hinged on the ocular account furnished by Babar William (complainant/P.W.8) and Bashir Masih (P.W.9), who happened to be the relations to Sajid William (deceased). In fact, Babar William was the real brother and Bashir Masih, an unspecified kin of the deceased. Both of them had their independent jobs and they were not linked with the business of Sajid William (deceased) in any manner. As per his own contention, Babar William (complainant/ P.W.8) was employed at the Police Motor Workshop as a constable for last twelve years. He lived in Model Colony, Lahore, which was at a distance of about eleven kilometers from the place of his job.
He mentioned the distance between his residence and the place of occurrence as four/five kilometers. Bashir Masih (P.W.9) admitted his relationship with the deceased in his statement. He was a rickshaw driver by profession and lived at a place, Model Colony No.2, Lahore, which was at a distance of about five kilometers from the hot-spot. Their presence at the spot at the relevant time of the occurrence could only be believed if they had offered any good reason or shown any justifiable purpose to be there, but they badly failed to establish this fact.
7. Haroon alias Pappee (respondent No.3) was not named in the FIR and he was involved in this case through supplementary statement of the complainant (P.W.8), which he rendered before Muhammad Aslam SI/I0 (P.W.14) on 3.5.2005, about 35 days after the alleged, occurrence. The complainant did not say a word as to making any supplementary statement in his examination- in-chief, but in cross-examination he stated that he made two statements before the police, one on 30.3.2005 and the other two/three days thereafter. He replied it in negative when he was put a suggestion that he had made the secondary statement about one and a half month after the first one. He stated to have reported the crime to the police through complaint (Exh.PW8/A), when they came to him at the Services Hospital Lahore. Bashir Masih (P.W.9) has categorically stated that his statement under section 161, Cr.P.C. Was recorded at the police station at about 8.00 a.m. On 30.3.2005 and it was the time when statement of Babar William (complainant/ P.W.8) and that of Sajid Masih was recorded there simultaneously. This particular deposition of P.W.9 reflects on the veracity of the complainant's version as well as that of Rab Nawaz SI (P.W.11) that complaint/Fard Biyan (Exh.PW8/A) had been recorded at the emergency ward of the Services Hospital Lahore.
8. The preparation of the complaint (Exh.PW8/A) by Rab Nawaz SI (P.W.11) at 6.35 a.m. On 30.32005 and registration of F.I.R. (Exh.PW13/A) by Abdul Majeed SI (P.W.13) at 7.30 a.m., the same day, leads to suggest that the matter had been reported to the police after due deliberations and consultations by the complainant and his co-witnesses, as the alleged occurrence had taken place at 11.00 p.m. On 29.3.2005, besides it cast a serious doubt on the claim of the witnesses of ocular account (P.W.8 and P.W.9) that they had been present at the spot at the crucial hour and witnessed the occurrence. The medical officer, Dr. Muhammad Ashfaq (P.W.10) categorically stated that Sajid William, when alive and in injured condition, had been brought to the hospital by the police for his medical examination and treatment of his injuries. The medico-legal report (Exh.PW10/A) of the then injured also showed that he had been shifted to the hospital by the police.
The relevant column "Name of relative or friend" has not been filled in by the medical officer and instead, the MLR bore the name of Abdul Rashid 4561/C (P.W.4), having accompanied the examinee then. The medical evidence, in no way, lends corroboration to the contention of Babar Walliam (complainant/P.W.8) and Bashir Masih (P.W.9) that they had brought Sajid William to the hospital in injured condition. The medico-legal report (Exh.PW10/A) shows that the deceased, when in injured condition, had been medically examined at 11.55 p.m. On 29.3.2005. The record does not tell, where the complainant and his co-witnesses were in between 11:55 p.m. To 6.35 a.m., the next morning. Abdul Rashid/Rashid Ah.Nad 4561/C (P.W.4) said nothing in his testimony, if he accompanied the injured Sajid William to Services Hospital, Lahore. What he has deposed about is that he along with Muhammad Sarwar 11972/C (P.W.3) escorted the dead body of Sajid William to the dead house of Mayo Hospital, Lahore on 30.3.2005, besides he stated about the seizure of last worn clothes of the deceased through memo of recovery Exh.PB. It is not so that the police did not reach the Services Hospital, Lahore at 11.55 p.m. On 29.3.2005 nor could it be made a point by the prosecution that the police had not shifted the injured to the said hospital, before he expired there during surgical intervention. The autopsy on the dead body of the deceased was performed about 16-1/2 hours after his death, which occurred at 9:30 p.m. On 30.3.2005. This delay is massive and highly injurious to the prosecution case and no one ever felt the necessity of explaining it during trial. Ironically, none of the names of the eye-witnesses appeared in the postmortem examination report (Exh.PC) as identifier of the dead body nor could it be so found in the inquest report (Exh.PW14/B). The delay of about 7-1/2 hours in reporting the crime to the police has gone unexplained, which seriously dented truthfulness of the assertion of the eye-witnesses, as to having witnessed the incident.
9. The complainant (P.W.8) admitted to have furnished his sworn affidavit before the learned trial court with the contention that Dilshad alias Gagga (respondent No.2) had not taken part in the incident nor he was armed with any weapon at the time of the occurrence; the co-witnesses informed him later on that Dilshad alias Gagga had been present at the spot but not taken part in the incident; lastly contended that he had no objection if he was released on bail.
10. Bashir Masih (P.W.9), the rickshaw driver, contended in his statement that his rickshaw was parked at a distance of about twenty (20) feet from the spot when the alleged occurrence took place. It is unfathomable if he and his rickshaw were available at the place of occurrence, why did the complainant and Azeem Akhtar (P.W.6) shift Sajid William, in injured condition to the hospital by a motorcycle. His statement does not appeal to reason in any way. His contention was that Sajid William travelled by his rickshaw from and to his shop for years. His rickshaw would have been the best possible conveyance for shifting the injured to the hospital, but it was not used for the said purpose, which gave rise to a definite idea that it was not there at that time nor he too, had been there then. It looks literally impossible that an injured person with multiple firearm wounds and in ostensible excruciating pain could be handled by two persons on a two-wheeler for shifting him to the hospital. Sajid William, when in injured condition had most probably been shifted to the hospital by the police through their own arrangements and complainant and others had no idea whatsoever in this regard. They fabricated the story of his shifting on a motorcycle, which did not look convincing. The ocular account did not inspire confidence, hence, it was liable to be brushed aside being untrustworthy and rightly so done by the learned trial court.
11. The case set up by the prosecution failed to stand the test of investigation and it transpired that Sajid William had been fired at and murdered by one Waqas Chaudhry. Muhammad Aslam SI/I0 (P.W.14) contended in his testimony that the crime had been committed by Waqas Chaudhry, Usman and Adnan. He further said that his opinion had been upheld by the high-ups of his department. He rather took pride in saying that the complainant looked satisfied with his investigation as he did not lodge any complaint against him before any forum. Learned trial court though reminisced that opinion of the investigating officer was irrelevant and inadmissible in evidence, yet it referred to a couple of judgments, Altaf Hussain and 4 others v. The State (PLD 2000 Lahore 216) and Nazira v. Mukhtar Ahmad and 2 others (2003 SCMR 528) in paragraphs 32 and 33 of the impugned judgment to formulate the point that "findings recorded by Investigating Officer though could not be sole basis for acquittal of the accused, but it could be considered as a circumstance in support of the independent findings arrived at to the effect that the prosecution has failed to prove the case beyond doubt against the accused."
12. The motorcycle whereby Sajid William had allegedly been shifted to the hospital was neither produced before the investigating officer nor during the course of the trial. Despite the aforesaid opinion of the investigating officer, the complainant did not file a private complaint to prosecute the accused. The prosecution case looked more of a jigsaw-puzzle than being a casein-order. The observations made and the arguments developed in the impugned judgments are compatible with the evidence available on the record, which appears to have been appraised unerringly by the learned trial court. The result drawn through the impugned judgment is unexceptionable, which does not call for interference by this court.
13. A judgment of acquittal cannot be upset sparingly as the accused would enjoy double presumption of innocence, one relating to the pre-judgment stage, that every accused is innocent till proved otherwise and the other one through a judicial verdict. Learned counsel for the appellant though repeatedly used the adjectives, illegality, infirmity or improbability as to the impugned judgment, but without any element of self-assurance and articulation. The well-settled principle of law is that a judgment of acquittal can only be interfered with if it looked wholly perverse, capricious, arbitrary, artificial, speculative or based on misreading or non-appraisal of the evidence on record resulting in miscarriage of justice, which incidentally is not the situation herein.
Reliance in this regard may easily be had on, Alam Khan v. Swans Khan and 3 others (1996 SCMR 1742), Inayatullah Butt v. Muhammad Javaid and 2 others (PLD 2003 SC 563) and Mst.Saira Bibi v.
Muhammad Asif and others (2009 SCMR 946).
14. For the discussion supra, we find this appeal too hollow at its base to issue a notice to the respondents Nos.1 to 3, hence, dismissed in limine.